Opinion - Leader Page Articles

Expulsion of MPs: the Speaker and the courts

Mahendra P. Singh

Even though the expelled MPs deserve no sympathy or leniency in punishment whatsoever, for upholding the rule of law the Speaker should respond to the notices of the Supreme Court.

LOK SABHA Speaker Somnath Chatterjee's repeatedly declared stand, approved at the all-party meeting held on January 20, that he would not respond to the notice issued by the Supreme Court on the petitions filed by some expelled members of Parliament seems to be leading towards an avoidable constitutional confrontation between the organs of the state. Mr. Chatterjee, himself an eminent lawyer of long standing, also invited two equally eminent lawyers, Fali S. Nariman and T.R. Andhyarujina, to the meeting and they supported his stand. No voice seems to be coming from any direction against the Speaker's stand except an incidental disapproval by Soli Sorabjee, former Attorney-General of India.

Any technical infirmity apart, the expulsions are morally and politically unquestionable and set an admirable example for all public institutions infested with corruption causing immense harm to the country's progress and well-being. The evil is so pervasive and entrenched in public life that like terrorism it has acquired global dimensions requiring international measures such as the United Nations Convention against Corruption. There is also a demand for recognition of corruption-free governance as a human right.

Against this background, the Speaker's action of expulsion could only be hailed. But in a rule of law society, which we claim to be, every action of any public body must conform to the law. In our legal system, law making and law enforcement powers are vested with the legislature and the executive respectively. The courts are vested with the power of checking whether the law is in accordance with the Constitution and has been correctly interpreted and applied. This is an accepted legal and constitutional proposition.

Even when the Constitution or any law expressly excludes the jurisdiction of the courts, they themselves determine the scope of exclusion. To this extent our Constitution shares the long established traditions of common law, now being followed in rule of law countries throughout the world.

In the United Kingdom, the mother of common law without a written constitution and with a sovereign parliament having power to make or unmake any law, all efforts of Parliament have failed to exclude the jurisdiction of the courts to determine what has or has not been excluded from their jurisdiction.

No rule of exclusion of jurisdiction can prevent a person from approaching the courts on a legal issue. H.W.R. Wade has called it a basic feature of the legal and constitutional system of the U.K., which Parliament has never been able to or could ever change.

In our constitutional and legal system never has a doubt been entertained that a person aggrieved can always approach the courts. Article 32 of the Constitution gives a person the fundamental right to approach the Supreme Court for enforcement of any of his fundamental rights. Article 226 empowers the High Courts to entertain any petition for the enforcement of fundamental rights or for any other purpose.

Any effort to restrict directly or indirectly this power of the courts even in the original Constitution as it was adopted on November 26, 1949, has been ineffective as, for example, in the Privy Purses (Madhav Rao Scindia vs. Union of India) or the post-Emergency State Assemblies dissolution (Rajasthan vs. Union of India) matters.

Basic structure doctrine

The Supreme Court has frustrated similar efforts after the commencement of the Constitution by evolving the doctrine of basic structure of the Constitution, which even an amendment of the Constitution cannot change (Kesavananda Bharati). A seven-judge Bench has unanimously laid down that the power of judicial review of any action of the legislature or the executive is a basic feature of the Constitution, which even an amendment cannot whittle down (Chandra Kumar vs. Union of India). Thus no action of any public body is either immune or can be immunised from judicial scrutiny unless and until the courts themselves find that action non-justiciable.

As regards Parliament and its two Houses, Article 122 expressly says "(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure," and that "(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers."

Article 122 follows Article 121, which prohibits any discussion "in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties." The two Articles express the doctrine of separation of powers, which requires non-interference by the legislature and the judiciary in each other's powers and functions.

But what powers belong to whom is a legal question, which in our legal system courts alone can determine with finality.

About clause (1) of Article 122, the court has already held that "it exempts from judicial scrutiny only irregularities in the legislative proceedings. But if the impugned procedure is illegal and unconstitutional, it will be open to be scrutinized in a court of law" (In re Keshav Singh). Similarly under clause (2), the Speaker is beyond courts' jurisdiction in the exercise of his powers but not in respect of those acts that do not lie within his powers. In a dispute over the existence and extent of his powers the Speaker's decision must be given the highest respect but it cannot be final.

If, for example, in the current controversy the expelled members allege that the Speaker or even the House does not have the power to expel them or that the power has been so exercised that it goes beyond his jurisdiction, the Speaker is not expected to refuse to respond to such allegations in court. He should satisfy the court that what he has done lies within his powers and therefore his action is beyond the jurisdiction of the court to enquire into it.

The courts are also expected to give the highest regard for the response of the Speaker and must insist that the petitioners establish beyond doubt the non-existence of his powers or excess in their exercise.

Although the power of expulsion has not been exercised for the first time in the current controversy, nor is its existence in doubt, to my knowledge the Supreme Court has not yet considered its exercise in any case.

Even if this power lies within the privileges of Parliament and is beyond judicial scrutiny in the U.K., from where unspecified privileges of Parliament are drawn in our Constitution, the court has held that our position is different from that of the U.K. inasmuch as we have a written Constitution, which guarantees us certain fundamental rights and also provides special remedies under Articles 32 and 226 (In re Keshav Singh). Already the court has invalidated a provision of the 10th Schedule (Anti-defection law), which gave the Speaker absolute power to disqualify members to the exclusion of the courts (Kihoto Hollohon).

Even though the expelled MPs deserve no sympathy or leniency in punishment whatsoever, for upholding the rule of law the Speaker should respond to the notices of the Supreme Court. It should close the matter at the preliminary stage unless the Speaker is found to have made a prima facie jurisdictional error in the exercise of his powers.

(The writer is Visiting Professor, School of International Studies, JNU, and formerly, Professor, Head & Dean Faculty of Law, University of Delhi.)

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